Citation Nr: 21005270 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-32 798 DATE: February 1, 2021 ORDER Entitlement to service connection for erectile dysfunction is granted. REMANDED Entitlement to service connection for myofascial lumbar syndrome is remanded. Entitlement to service connection for a left leg disability is remanded. Entitlement to service connection for a right leg disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. FINDING OF FACT The Veteran's erectile dysfunction has been related by competent medical evidence to his service-connected bilateral varicoceles with right microlithiasis and spermatoceles. CONCLUSION OF LAW The criteria for entitlement to service connection for erectile dysfunction as secondary to service-connected disability have been met. 38 U.S.C. § 1110, 38 C.F.R. § 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1974 to April 1976. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In September 2018, the Board remanded these claims for additional development. The Board notes that the Veteran’s increased rating claim for pes planus is now on a separate appeal stream under the Appeal Modernization Act. Additionally, during the course of the appeal, the Veteran was granted service connection for bilateral hip disabilities. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b), Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any disease diagnosed after discharge from service when all of the evidence, including lay evidence, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including arthritis and diseases of the nervous system, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disability, the following three elements must be satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Hickson v. West, 12 Vet. App. 246 (1999). The requirement of a current disability is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). To establish service connection based on a continuity of symptoms, there must be evidence demonstrating (1) that a condition was "noted" during service; (2) post-service continuity of the same symptoms; and (3) a causal link between the present disability and the continuous symptoms. Fountain v. McDonald, 27 Vet. App. 258, 263-64 (2015). In evaluating the evidence in an appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold same and, in doing so, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to the evidence. Jandreau v. Nicholson, 492 F.3d 1372 (2007). Competent medical evidence is the type of evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and/or statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any kind of evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Veterans are qualified ("competent") to testify to the presence of observable symptoms. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis or to establish cause if "(1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board is required to weigh the evidence of record, including the medical evidence, to make factual determinations. Cf. Evans v. West, 12 Vet. App. 22, 30 (1998). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to service connection for erectile dysfunction Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In this regard, the record reflects that a January 2020 VA examiner provided the opinion that the Veteran's multiple surgeries for his service-connected bilateral varicoceles with right microlithiasis and spermatoceles caused his erectile dysfunction. Therefore, giving the Veteran the benefit of the doubt, and with no competent opinion to contradict the opinion of the January 2020 VA examiner, the Board finds that service connection for erectile dysfunction is warranted on a secondary basis. REASONS FOR REMAND 1. Entitlement to service connection for myofascial lumbar syndrome is remanded. The Veteran and his agent claim that he has a lumbar spine disability which was caused by the Veteran’s service-connected bilateral pes planus. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeals. The Veteran was afforded a VA examination in June 2011. During the examination, the Veteran was diagnosed with myofascial lumbar syndrome. During the September 2018 Board remand, the Board determined that it could not make a fully-informed decision on the issue of a lumbar spine disability because no VA examiner had opined whether the Veteran’s lumbar spine disability was caused or aggravated by the Veteran’s service-connected bilateral pes planus. Following the Board remand, an opinion was obtained, along with an opinion for the Veteran’s bilateral leg disability, concluding the lumbar spine disability is less likely than not caused or permanently aggravated by the Veteran’s pes planus. The examiner concluded that the lumbar spine disability was more likely than not caused by the Veteran’s age. However, the Board notes that the opinion did not sufficiently address the potential impact caused by the Veteran’s service-connected bilateral pes planus, to include an altered gait. The Board must ensure that VA medical examinations and opinions substantially complied with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, another remand is required to ensure compliance with the September 2018 Board remand. Additionally, as the Veteran's treatment records and statements indicate that the Veteran has a lumbar spine disability that could be related to a service-connected disability, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). 2. Entitlement to service connection for a left leg disability is remanded. 3. Entitlement to service connection for a right leg disability is remanded. The Veteran and his agent claim that he has a bilateral leg disability which was caused by the Veteran’s service-connected bilateral pes planus. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeals. In the September 2018 Board remand, the Board determined that it could not make a fully-informed decision on the issue of a bilateral leg disability because no VA examiner had opined whether the Veteran had a current leg disability which was etiologically related to his in-service leg injuries, or which were caused or aggravated by the Veteran’s service-connected bilateral pes planus. Following the Board remand, an opinion was obtained concluding the bilateral leg disability is less likely than not related to his active duty service. The examiner also concluded that the bilateral leg disability was more likely than not caused by the Veteran’s age. While addressing the Veteran’s lumbar spine, the examiner opined that the bilateral leg condition was less likely than not caused or permanently aggravated by the Veteran’s pes planus. However, the Board notes that the opinion did not sufficiently address the potential impact caused by the Veteran’s service-connected bilateral pes planus, to include a potential altered gait. The Board must ensure that VA medical examinations and opinions substantially complied with the Board's prior remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, another remand is required to ensure compliance with the September 2018 Board remand. Additionally, as the Veteran's treatment records and statements indicate that the Veteran has a bilateral leg disability that could be related to a service-connected disability, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). 4. Entitlement to service connection for a left ankle disability is remanded. 5. Entitlement to service connection for a right ankle disability is remanded. The Veteran and his agent claim that he has a bilateral ankle disability which was caused by the Veteran’s service-connected bilateral pes planus. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeals. The Veteran was provided VA examinations for this claimed disability in March 2020. The VA examiner determined that the Veteran did not have a current bilateral ankle disability. However, the United States Court of Appeals for the Federal Circuit's (Federal Circuit's) recent holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), providing that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." During the March 2020 VA examination, the Veteran reported experiencing functional impairment due to his bilateral ankle disability, specifically that it causes difficulties with prolonged walking and standing in the bilateral ankles. As the Veteran's statements indicates that the Veteran could have a bilateral ankles disability that could be related to a service-connected disability, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). 6. Entitlement to service connection for a left knee disability is remanded. 7. Entitlement to service connection for a right knee disability is remanded. The Veteran and his representative claim that he has a bilateral knee disability which was caused by the Veteran’s service-connected bilateral pes planus. Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeals. The Veteran was provided VA examinations for this claimed disability in March 2020. The VA examiner determined that the Veteran did not have a current bilateral knee disability. However, the United States Court of Appeals for the Federal Circuit's (Federal Circuit's) recent holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), providing that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." During the March 2020 VA examination, the Veteran reported experiencing functional impairment due to his bilateral knee disability, specifically that it causes difficulties with prolonged walking and standing in the bilateral knees. As the Veteran's statements indicates that the Veteran could have a bilateral knee disability that could be related to a service-connected disability, the Board finds that a medical examination with an opinion is necessary to decide the claim. 38 C.F.R. § § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 70 (2006). The matters are REMANDED for the following action: 1. The Veteran must be afforded a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's lumbar spine disability. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then: Provide an opinion considering whether the Veteran's lumbar spine disability is at least as likely as not proximately due to or aggravated by a service-connected disability. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 2. The Veteran must be afforded a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed leg disability. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then: (a) Identify all disabilities relating to the Veteran's claimed bilateral leg condition. (b) Provide an opinion considering whether the Veteran's claimed bilateral leg condition is at least as likely as not proximately due to or aggravated by a service-connected disability. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. 3. The Veteran must be afforded a VA examination by a new examiner with appropriate expertise to determine the nature and etiology of the Veteran's claimed bilateral ankle and bilateral knee disabilities. Any and all studies, tests, and evaluations that are deemed necessary should be performed. The claims folder, including a copy of this remand, should be reviewed by the examiner. The examination report should note review of these records, and the VA and private treatment records. The examiner should then: (a) Identify all disabilities relating to the Veteran's: (i) Left ankle (ii) Right ankle (iii) Left knee (iv) Right knee (b) For all disabilities identified in any subpart of part (a), provide an opinion considering whether each is at least as likely as not proximately due to or the result of any incident of the Veteran's service or due to a service-connected disability. (Continued on the next page)   (c) If the Veteran's reported bilateral ankle or bilateral knee pain are not found to be a manifestation of any disability, please describe the functional impairment resulting from the Veteran's bilateral ankle or bilateral knee pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's bilateral ankle or bilateral knee pain on his ability to stand, walk, run, and maintain balance. The examiner should provide a complete rationale for any opinions offered. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. R. Montalvo, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.